The Regulation of Hate Speech Online and its Enforcement in a Comparative Perspective

Call for Papers for the British Association of Comparative Law’s Annual Seminar

Regulators around the world are grappling with the problem of hate speech online. Definitions of hate speech, the appropriate balance between regulation and freedom of expression, and the mode of regulation adopted, vary considerably across jurisdictions with distinct media and socio-political environments. The Council of Europe adopted the first internationally agreed definition of hate speech in 1997. The UK Parliament is currently considering a Bill to empower Ofcom to regulate “online harms”. Significant parts of Frances Loi Avia were stuck down as unconstitutional by the Conseil constitutionnel in summer 2020. Germanys 2017 NetzDG now regulates the take down of hate speech on online platforms. The European Union has developed a Code of Conduct on countering illegal hate speech online, which monitors a growing number of subscribing platforms. Some internet platforms themselves are developing more sophisticated regulatory systems. Facebook’s Independent Oversight Board and appeals system builds on its substantial body of community standards and enforcement practices. Twitter’s suspension of US President Donald Trump’s Twitter account following  the Capitol riots further highlights the importance of these platforms’ policies for freedom of expression, political polarisation, and societal harms.

This call aims to identify and compare the factors shaping the development, across jurisdictions, of the regulation of hate speech online. It is especially open to papers that question the commonality of the problem, expose the assumptions that underpin different models of regulatory response to hate speech online, explore differences in their enforcement issues, and highlight regulatory and enforcement approaches within and outside Europe and the USA. Contributions and comparative discussions on the following topics are particularly welcome:

  • Domestic and international answers to transnational issues regarding online hate speech:

Many of the largest internet platforms are based in the USA, protected by its jurisprudence on the 1st Amendment, with varying exposure to regulators in other parts of the world. Perpetrators of hate speech may post to such platforms from any location or develop their own platforms. That location, and the poster’s identity, may be obscured by technical measures. “Online” virtual speech, though often contrasted with “offline” reality, is stored and processed through physical servers, which are not necessarily located in the same jurisdictions as platforms, perpetrators, regulators or victims of hate speech. How far do these issues lead to a greater focus on those who enable online hate speech, rather than the perpetrators? What factors may explain differences between jurisdictions?

  • The contested definition of hate speech, with multiple meanings acquired in complex historical, political and legal practices, reflecting some underlying social and political tensions:

The importance of intention or consequence, for example, is contested, especially in analyses of racist and sexist speech. Speech may unintentionally reinforce unconscious bias, leading to discriminatory outcomes. Should such speech, as it reinforces inequality, be understood as a form of hate speech? How can differences in the definition and understanding of hate speech across jurisdictions be explained and understood?

  • The  contested relationship between “online” hate speech and “offline” harms:

Evidence of the causation of harm by some forms of expression can be uncertain or incomplete, such as can be seen at the disputed boundary between pornography and abuse imagery. Such harms can also be more or less indirect or diffuse; they can blur the boundaries between a private and a public domain, and the scale of harm can be disputed, as is the case in relation to misinformation about politics or public health. To what extent do differences in the types of regulation of hate speech (e.g. criminal law) reflect differences in the underlying definition and understanding of harm?

Participants will be asked to join a Zoom workshop in May 2021 to discuss and develop their abstracts in preparation for the presentation of papers at the BACL Annual Seminar (this year online) on 31st August. Questions may be sent to Dr Oliver Butler (oliver.butler [at] law.ox.ac.uk) and prospective participants are invited to send a 300-word abstract to Dr Sophie Turenne (st325[at]cam.ac.uk) by Monday 15th March.

About the British Association of Comparative Law: Established in 1950, the British Association of Comparative law (BACL) promotes the study and teaching of Comparative law; it seeks to foster academic debate on comparative topics in a friendly environment ; it represents the UK at the International Academy of Comparative Law and it acts as a point of contact for comparative lawyers in the UK and abroad. Further information about its activities can be found online: https://british-association-comparative-law.org/